MUSICCOVIDRELIEF.COM EXPLAINS CARE ACT AND OTHER PANDEMIC RESOURCES FOR THE MUSIC BUSINESS

A host of organizations have come together to create MusicCovidRelief.com, a website that explains the ins and outs of the CARE Act, the pandemic relief bill.

Spend some time on the site and learn about the many cash resources made available by the historic legislation.  The good news is that self employed and small business can take advantage of funds, but move quickly because the funds are available on a first-come first-served basis.

Big thanks to RIAA for putting this together so quickly.  Visit  MusicCovidRelief.com to know what’s on offer.  You may also find the return of the Carte Musique to be of interest as in this post from Chris that is getting uptake in some policy circles it limits the purchasing power to tracks bought from a local retailer.  Again–Carte Musique cannot be used at Amazon but can be used to buy directly from a participating store.  The Carte could be cosponsored by big brands even for tours with tour branding.

12 Questions For Boston Public Library President On “Emergency National Library” Endorsement

David Leonard is the President of Boston Public Library.  He and his library have endorsed the Internet Archive’s creation of a so-called “National Emergency Library.”  The Library will make available copies of 1.4 million books without permission or compensation to the authors. Forget the nonsense about “eliminating waitlists” that’s a not very clever way of trying to hide the fact they want to make unlimited copies of authors’ works with no permission or royalties.

My take on this is it’s an opportunist attempt by anti-copyright ideologues backed by Silicon Valley firms to exploit the COVID-19 crisis.  It honestly makes me sick to my stomach that Americans would treat their fellow countrymen this way in a crisis.  However, I am not surprised.  The Internet Archive has long been Google’s lapdog. Shameless corporate shills, no one should be surprised to discover they are disgusting opportunists. Brewster Kahle the founder of the Internet Archive is just another Silicon Calley scammer, posing as a selfless warrior for the public good. Meanwhile, he is sitting on over 100 million dollars in his related Kahle-Austin Foundation. Who gave him that much money? What on earth did he do to make himself that rich? I mean aside from policy washing for Silicon Valley billionaires.

However I was frankly surprised to see Boston Public Library President David Leonard sign on to support this dubious endeavor.  I’ve had a couple email conversations with him, and although I don’t agree with many of his copyright positions, I found him intelligent and willing to engage in a polite manner.  He doesn’t seem like the kind of person that would get involved in this sort of sketchy policy washing by Silicon Valley elite.  Nor does he seem like the type of person to exploit a crisis the way the Brewster Kahle might.  Perhaps I’m missing something here. Therefore I have chosen to direct my questions about the “Emergency National Library” to Mr. Leonard as he has been reliable and helpful in the past.

Questions for David Leonard President of Boston Public Library

Q1. How is this fair use? It seems to fail on all four elements.  The entire work is copied. HIghly unique fictional works copied. It competes directly with/is identical to commercially licensed royalty generating services.  Technically Internet Archive is a non-profit but in 2017 it took in 17 million in grants and donations. Board members receive six-figure salaries. The closely related Kahle Austin Foundation is sitting on $109 million dollars. Hardly a neighborhood branch library or storefront church. 

A.?

Q2. If you believe that distributing these authors’ books without permission and compensation is “fair use” why doesn’t the Boston Public Library directly digitally distribute these books instead of relying on the Internet Archive?  Is this a sign that the Boston Public Libary finds the fair use claim dubious and wants to avoid litigation?

A.?

Q3. The statement makes the argument that the “National Emergency Library” is fair use because this is a national emergency. The statement proposes a time limit on how long this permissionless royalty-free lending will go on further emphasizing this is “temporary” fair use.  Under US copyright law or jurisprudence, how does something become fair use in an emergency when it is not normally fair use? 

A.?

Q.4 If this is legitimate fair use why are authors allowed to opt-out?  Again why shouldn’t we read this as an admission this is a dubious and opportunistic endeavor likely to end in litigation?

A.?

Q.4 If most poor students are unlikely to have high-speed internet access at home how does this help them? Doesn’t this disproportionately benefit wealthier families?

A.?

Q.5 Are you personally still receiving a salary from Boston Public Library during this crisis? It seems to me most people who signed the letter are probably still receiving their salary. Why should authors that on average make $20k a year be forced to carry the entire financial burden of the National Emergency Library? To show good faith would you agree to forgo say 1/2 your salary till this crisis is over?

A.?

Q.6 Fair use is a North American only legal concept.  With a few exceptions, it is not an available defense in the rest of the world. We tested the National Emergency Library in a number of jurisdictions. It appears to be available globally. How is the library legal in say Germany, Japan, Sweden or France?  By endorsing, publicizing and linking to it aren’t you breaking the law in many of these countries?

A.?

Q.7 Have you or any of the cosigners considered you are advocating the violation of a number of our obligations under intellectual property and trade treaties?  Ultimately the US taxpayer or US businesses would end up paying the penalties (See penalties applied to the US for Fairness in Music Licensing Act). How is that fair?

A.?

Q.8 The 2008 Higher Education Opportunity Act puts strict obligations on institutions that receive federal financial aid to actively discourage copyright infringement.  Now it seems we have dozens of university libraries seemingly encouraging copyright infringement.  Do you think this is wise? Some jackass like me could file a complaint with the Department of Education that they would be obliged to investigate.  Thoughts?

A.?

Q.9 How committed to this cause are you? Will, you use city resources to defend Internet Archive in the event of legal action by authors?  For instance by filing amici curiae? If so how will Boston or Massachuesettes taxpayers benefit? 

A.?

Q.10  Will BPL receive stimulus funds from the federal government? If so will you be devoting any of these funds to help poor students without access to books? Can you detail these efforts? Show authors you are just as committed to spending your funds as you are to giving away their work? 

A.?

Q.11  Professor Devlin Hartline at GMU Law commented on twitter that Internet Archive is “literally committing criminal copyright infringement under Section 506(a)(1)(B).”  He tweeted that at the DOJ. Hartline is not a bomb-thrower like me.  He’s normally pretty reserved.  Does this give you pause? Does this make you rethink your endorsement? 

A?

Q.12 It’s obvious that this campaign and document were professionally organized. Can you tell us who led this effort? Who came up with the idea? 

A?

We hope to hear from you soon.  We will publish your reply completely unedited.  Thanks for indulging us.

 

 

 

 

 

 

 

 

 

Guest Post Blake Morgan: The battle is upon us, but we will not give up

Reprinting Blake Morgan’s inspirational social media post from earlier today:
To my sisters and brothers in NYC music, and beyond…
The Irish tell the story of a man who arrives at the gates of heaven asking to be let in, and Saint Peter says, “Of course! Just show us your scars.” The man says, “But…I have no scars,” and Saint Peter answers, “What a pity. Was there nothing worth fighting for?”
We musicians are used to fighting. For our livelihoods, for our families, for our hopes and dreams, for our calling. For our profession.
In recent years we’ve fought battles we’ve neither sought nor provoked. Battles against powerful corporate forces attempting to devalue music’s worth, streaming companies attempting to lower our micro-penny payments even further, and AM/FM radio which, in the Untied States, makes billions of dollars each year off of our music while paying nothing––zero––to artists for radio airplay.
But now we face a different battle.
Musicians’ road ahead is narrowing because of the crisis of the present. However challenging the future of my profession would have been without the current pandemic, it’s becoming clear now that for music, the future isn’t what it used to be.
Like so many in this country and around the world, we’re facing economic hardships, uncertainty, and danger. Unlike so many others, musicians are facing the tomorrows to come without health insurance, without eligibility for unemployment insurance, without any savings, without any system of fallbacks. Without a way to bounce back. Our “gig economy” has failed to bolster the already-weakened financial options of working musicians.
We will have to fight like never before, in a landscape which––even once this immediate health crisis subsides––we may not even recognize.
The battle is upon us, but we will not give up.
We will not give out.
We will not give in.
We will hold fast. To each other, and to ourselves.
We will light the torches of our inspiration, and we’ll meet these challenges with determination.
And years from now, should someone ask how we got these well-won scars, we’ll say, “From fighting.”
#IRespectMusic

#DoStuffAtHome To the Rescue!

You probably know DoStuff as Do512 or DoLA or another of their many handles as the premier local events website.  Now that artists are starting to hit the virtual venue space as a real thing, DoStuff has responded with DoStuffAtHome.com which is a directory of the many virtual shows around the country.

A good example is DJ Mel’s Living Room Dance Party which features a DJ set by Austin’s own DJ Mel which he hosted on his Facebook page and draws over 6,000 people for a fabulous community dance party on Saturday night.  And he raised money for good causes with a $10,000 boost from Tito’s Vodka.  Shout out to Tito’s!

Check it out, list your event, keep the faith.  This will be our finest hour.

Press Release: @SoundExchange, entertainment community ask Congress for financial relief during coronavirus pandemic

PRESS RELEASE

Today, SoundExchange joined organizations from across the entertainment community to ask Congress to address the unique nature of our community’s work when it develops an aid package in response to the coronavirus pandemic. Payroll tax holidays, paid leave, and other types of assistance have been raised for consideration by our nation’s leaders, but they may never reach the many workers in the music industry who don’t have a single, long-term employer.

You can find the full text of the letter below or download a pdf here.

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

As united representatives of the large and diverse American entertainment community, we offer our sincere gratitude for your immense efforts to address the COVID-19 pandemic and to provide much needed aid.

We understand the sacrifices our country is making and appreciate our shared responsibility. We will make the necessary adjustments to our lives but, unfortunately, there is no option for many in the entertainment community to work from home. Our home is on the road, on the studio lot or in the theater, in venues across the country that must close during the pandemic, in front of live audiences or with cast members who cannot gather. For now, those performances – and our jobs – have vanished, along with the costly and personally devastating investments we can never recover. Without help, we know that many in our community will find themselves homeless, hungry, and unable to tend to their medical needs.

The economic pain cuts even deeper, touching not only performers and musicians, but also managers, producers, promoters, stagehands, drivers, and countless others who are feeling the immediate repercussions of this new reality. This unprecedented economic loss caused by canceled performances and production shutdowns is being played out in bars, nightclubs, theaters, stadiums, concert halls, studios, and festivals in every state, sidelining thousands of workers.

The entertainment community will do what it can to support its members, but this moment calls for the unmatched capabilities of Congress. As you navigate the difficult path to providing necessary aid to distinct sectors of our economy, we ask that you specifically address the unique nature of our work. Payroll tax holidays, paid leave, and other typical assistance may never reach many in the entertainment community; in fact, direct financial aid remains one hopeful – and perhaps best – solution to replacing lost income and offering some semblance of economic sustainability. 

We propose a similar benefit to the Emergency Paid Leave in Division C of HR 6201, along with emergency unemployment insurance access, available to those who cannot work due to a canceled performance or a production shut down. This fund and expanded unemployment insurance access and benefits would ensure that hundreds of thousands of families across the country can continue to pay rent, put food on the table, and care for their children during this public health emergency. In addition, we encourage you to be as inclusive as possible when crafting emergency paid leave, tax credits, and other programs – the unique nature of our industry means rules that require beneficiaries to have had a single, long-term employer will simply leave our entire workforce behind.

We all look forward to the end of this crisis. Certainly, entertainment will help us get through it. But we must take care of the many people in the American entertainment community who will help us heal, rebuild, and bring us back together, in public and in spirit.

Thank you very much.

Sincerely,

Actors’ Equity

Alliance for Recorded Music (ARM)

American Association of Independent Music (A2IM)

American Federation of Musicians (AFM)

Americana Music Association

Artist Rights Alliance (ARA)

The Azoff Company

The Broadway League

California IATSE Council

Christian Music Trade Association (CMTA)

Country Music Association (CMA)

Gospel Music Association (GMA)

CreativeFuture

Department for Professional Employees, AFL-CIO (DPE)

Digital Media Association (DiMA)

Directors Guild of America (DGA)

Entertainment Union Coalition

Full Stop Management

Global Music Rights (GMR)

Independent Music Professionals United (IMPU)

International Alliance of Theatrical Stage Employees (IATSE)

International Bluegrass Music Association (IBMA)

Live Nation

Music Artists Coalition (MAC)

Music Business Association (MusicBiz)

Music Managers Forum – US

Nashville Songwriters Association International (NSAI)

National Music Publishers’ Association (NMPA)

Paradigm Talent Agency

Recording Academy

Recording Industry Association of America (RIAA)

Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA)

SESAC

Songwriters of North America (SONA)

SoundExchange

Southern Gospel Music Guild

United Talent Agency (UTA)

William Morris Endeavor (WME)

Writers’ Guild of America, East

Google’s Charm Offensive Comes to Senate IP Subcommittee

Guest post by Chris Castle

[This is a version of a letter I sent to the Senate Subcommittee on Intellectual Property on March 10 to call attention to various discrepancies in the proposed witness list, especially the undisclosed presence of the Pirate Party at a hearing at the world’s greatest deliberative body.  And typically, Julia Reda never disclosed her affiliation in her witness bio or in her written testimony.  Why so secretive?  You can watch the video of the hearing here.  Apparently the rules of the subcommittee prevented Senators from questioning the witnesses, which allowed Google’s amen chorus to simply spew propaganda into the hearing record.]

I want to thank the Subcommittee on Intellectual Property for holding the referenced hearing.  Digital piracy is of ongoing concern to all contributors to the creative community be they photographers, film makers, authors, songwriters, musicians or featured artists.  This is particularly true after catastrophes like the cancellation of SXSW in the Live Music Capitol of the World.  Creators very often feel overwhelmed by the forces that use the Internet and the U.S. banking system to unlawfully extract value from their copyrights.  Digital piracy seems to benefit everyone in the piracy supply chain except the creators of the works driving these racketeering operations.

Unfortunately, the hearing witness list seems to indicate an overwhelming influence of Google and Google proxies as well as a representative of the Pirate Party.  However gloomy this turn of events may first appear for creators, it presents an opportunity for the Subcommittee to question the witnesses about the influence of Big Tech on efforts to reign in pirate operations, particularly off shore pirate operations.  I raise a few points of reference that I hope may prove useful to the Subcommittee and respectfully ask that you request that this letter be made a part of the Subcommittee’s record for the hearing.

Off Shore Pirates Profit by Interfering in US Markets

Unlike the historical pirates who were declared hostis humani generis under admiralty law, or the modern pirates who hijack cargo ships such as the Maersk Alabama and are stopped by Operation Allied Protector, digital pirates defy the nation state relatively openly and brazenly.   Digital pirates leverage anonymity, geography and extradition treaties to wrap themselves in the laws they cherry pick and use as loophole-driven alibis.  They also engage in lawfare and have organized political movements from Kim Dotcom’s Internet Party to the Pirate Party.  Pirates also embrace a host of academics and corporate legal departments that push their views.  For example, Stanford hosted a July 2007 Pirate Party cash-preferred political fundraiser for anonymous donors that also had stops at the Googleplex[1] and the O’Reilly conference.  The examples go on and on.

Despite the penetration of streaming services, music piracy is still a major problem for creators.  According to the IFPI, “forty percent of Internet users access unlicensed music content.”[2]  The Subcommittee’s focus on the issue is of great public policy importance.

There is a long history of pirate websites locating themselves outside of the United States but marketing themselves to U.S. users in a deceptive manner that makes it difficult for consumers, including both consumers and brands, to distinguish an illegitimate site from a legitimate one.  As the UK’s Serious Organized Crime Agency warned advertisers, “By incorporating advertising from recognized brands the website administrator attempt[s] to make the site appear legitimate.”[3]

This practice is most pronounced with sites that profit from U.S. content by selling advertising or subscriptions to enrich themselves from trafficking in pirated works.[4]  There is a continuing controversy regarding the source of the advertising[5]published on these illegal sites coming from Google entities through various intermediaries and resellers[6] as well as the use of the banking system to fund the pirates.[7]

The leading torrent site to this day is The Pirate Bay which has a recent Alexa rank of the 169th most visited site on the Internet.[8]  Founded in Sweden 17 years ago[9] contemporaneously with the Pirate Party, The Pirate Bay personifies the off-shoring of piracy and has been consistently mimicked by hundreds of other pirate sites such as YTS.It, 1337x, RARBG, NYAA.si, Torrentz2, EZTV.io, LimeTorrents, FitGirl Repacks and Tamil Rockers.  Pirate streaming sites follow the same offshoring practice and are an even bigger source of piracy than torrents.

These pirate sites invariably purport to wrap themselves in the DMCA safe harbors but locate themselves in havens outside of the U.S. that are well outside the reach and resources of creators forced to play the Superbowl of international whack-a-mole.  These pirate sites have no intention of subjecting themselves to the jurisdiction of U.S. courts but want the benefits of U.S. law, all the while marketing themselves in the U.S. in direct competition with the creators, including creators, whose works they steal.[10]

The digital pirates’ fascination with creating these offshore “pirate utopias” (or “Temporary Autonomous Zones” or “TAZ”) dates back to the 1991 hacker’s handbook by the anarchist Peter Lamborn Wilson entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism.”[11]  Julian Assange promoted the idea of a TAZ-type “offshore publications center” for Wikileaks in the 2009 document “Here be Dragons: Going from Defense to Attack.”[12]   Assange proposed Iceland as an offshore center and pirate utopia that would allow Wikileaks to operate freely.  Birgitta Jónsdóttir, a founder of the Iceland Pirate Party,[13] was one of the sponsors of the “Icelandic Modern Media Initiative”[14] that would have essentially codified Assange’s goals and is gradually coming to fruition at the Icelandic Parliament.  Again, the idea was to establish an off-shore haven for activity that would otherwise be illegal—a geographical safe harbor or TAZ well beyond the legislative safe harbors that largely accomplish the same purpose inside major economies like the United States in the name of protecting “intermediary liability” for the largest corporations in commercial history.

Pirates embrace the nation they spurned once they get caught.  Companies like Megaupload[15] located themselves in Hong Kong but put up a smokescreen of complying with the DMCA notice and takedown procedures while marketing themselves in America.  They often use the U.S. banking system to receive illicit payments from users or advertising revenue from companies like Google and Adbrite.[16]  Even in the handful of cases where copyright owners are able—at great expense beyond the means of most creators–to get these massive infringers in front of a U.S. judge such as with the Panamanian company Hotfile,[17] the defendant tries to wrap themselves in the protection of the DMCA safe harbor.

The Justice Department’s well-known experience with trying to extradite the Megaupload conspirators since 2012 is a prime example of the lengths to which these brazen racketeering organizations will go to avoid U.S. justice while simultaneously claiming the protection of U.S. law.  If the Megaupload conspirators ever do find themselves before Judge O’Grady, they will no doubt seek the protections of the DMCA because they argue Megaupload is “just like Google.”  In fact, Google submitted an amicus brief in the Hotfile case arguing that massive infringers should be protected by the DMCA—which makes Google’s shadowy presence at the Subcommittee even more telling.

Drafters of the DMCA would probably never have thought of themselves as creating a pirate utopia, but the safe harbor concept is near and dear to the Pirate Party, its backers and supporters.  Statutory safe harbors—or protection from “intermediary liability” as Google might call it–are more than a little reminiscent of the TAZ.  It is thus striking that the Subcommittee is to hear from Julia Reda, the long-time representative of the Pirate Party in the European Parliament, as well as so many other beneficiaries of Google’s support.

Julie I am the pirate

Pirate Party Witness Will Offer Big Tech’s Anti-Copyright Propaganda

I find it hard to understand why the Subcommittee has invited a leader of the European Pirate Party to testify at a hearing devoted to learning from efforts to reign in digital piracy in other countries.  I also find it rather odd that Ms. Julia Reda failed to disclose her German Pirate Party association in her public witness biography or her witness statement when last accessed today, which is ambiguous at best and misleading at worst. And typical of the duplicity we have come to expect from her.

Ms. Reda was the sole representative of the Pirate Party in the European Parliament for many years.[18]  Her Pirate Party affiliation is directly relevant to her testimony.  The Pirate Party, as the name implies, is closely tied to promoting piracy using the tiresome shibboleth of “sharing culture” in the words of Ms. Reda, or conversely the equally empty vessels of making copyright “progressive” and “fit for the future,” or simply the vague “access to knowledge” meme favored in Open Society Institute circles.[19]

Or just make international copyright even weaker—to the great detriment of the property rights of creators already under attack from multiple sources. [20]

It also must be said that Big Tech has tried for years to get creators to believe that digital piracy actually helps artists and songwriters because it drives fans to shows and movie theaters.  Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties.  However implausible that assertion is, if there’s no touring or touring is severely cut back due to public health concerns, then both piracy and the income transfer to pirates becomes even more important to all creators.

Julia Child Lobbying

The Pirate Party has had a close connection to the notorious criminal infringer The Pirate Bay.  In fact, the Pirate Bay’s co-founder Peter Sunde ran for the EU Commission Presidency on the Pirate Party slate at the time of his arrest, conviction and imprisonment in Sweden for massive copyright infringement.[21]  The Pirate Party reportedly offered to host the Pirate Bay on the servers of the Swedish Parliament.[22]

According to Wired Magazine,[23] the Pirate Bay inspired the creation of the Pirate Party in 2006—regardless of whichever came first, the two are synonymous today.  The connection between piracy and the Pirate Party is abiding and sustained over a generation.  Indeed the German Pirate Party’s youth operation—“Junge Piraten”—is devoted to the ongoing generational transfer of its goals.[24]  Anyone who observed the Pirate Party’s tactics in the recent European Copyright Directive debate at the European Parliament should have no doubt that Ms. Reda is a dedicated opponent of copyright and an equally dedicated supporter of piracy masquerading as “sharing culture” or “progressivism.”

helga google interfere

Plus, it must be said that Ms. Reda’s efforts to stop the Copyright Directive were as close to Google’s own lobbying effort as one is to two.  This includes such extreme tactics as spamming MEPs, lobbying the children of elected officials through Twitter to try to persuade their parents to oppose the Copyright Directive (sometimes referred to as #Article13) and promoting the #saveyourinternet spamming and Twitter bot campaign along with Google and particularly YouTube.[25]  Google was caught spamming Members of the European Parliament on the Copyright Directive by the Times of London in an independent investigation.  According to The Times, “Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals[,] intended to amplify the extent of public support for policies that benefit Silicon Valley[.]”.[26]  This may sound reminiscent of what the U.S. Congress was subjected to during SOPA.

Given Google’s éminence grise at the hearing, it is no surprise that of all the elected representatives who the Subcommittee could have invited, it is Ms. Reda who finds her way into the U.S. Senate.  Reda-watchers assume she will be dining out on the platform afforded her in the Senate for years to come.  Hopefully, Ms. Reda does not intend to export her European Parliament lobbying tactics against Senators in the United States.

Google Dominates the Subcommittee Witnesses

It is also striking that Google is so well-represented among the witnesses at the Subcommittee’s hearing—yet its name is never mentioned.  Texans are asked to pay no attention to who is behind the curtain.  A little bit of research reveals the connections.

Professor Smith’s own Carnegie Mellon biography[27] lists four separate research grants from Google.  The Carnegie Mellon Privacy and Security Lab received a $1,050,000 cy pres award[28] in the controversial Google Referrer class action as well as a $350,000 cy pres award in the Google Buzz settlement.

Google is a leading member of the Computer and Communications Industry Association[29] which is a frequent critic of artist rights advocates and a reliable amicus brief for Google’s extreme business practices alongside NGOs like the Electronic Frontier Foundation, R Street and Engine Advocacy.

Daphne Keller is a former Google senior lawyer responsible for Google’s crown jewel of search and now works as “Director of Intermediary Liability” at the Stanford Center for the Internet and Society PACS.[30]  The Center was itself was launched with at $2 million gift from Google.[31]

As Ms. Keller well knows, Google’s own Transparency Report[32] shows the company has received over 4 billion DMCA takedown notices for infringing material in Google search alone. This is what is meant by “intermediary liability” (or more appropriately, no liability for self-defined “intermediaries”).  Is there another company in commercial history that when told it has infringed 4 billion times views the same ongoing infringement technique as a feature not a bug?  Does anyone believe that Google’s search algorithm is not behaving foreseeably exactly as designed due to lack of resources, complexity of scale or any other reason?  Or is Google instead distorting every possible safe harbor loophole and copyright exception to maximize its profits by maximizing the value gap?  Google would no doubt argue that the reason they receive so many takedown notices is because of the scale of Google’s monopoly operation–which is like the arsonist arguing that they should be excused from punishment because they light a lot of fires.  Perhaps fighting digital piracy begins at home.

Both Professor Samuelson’s Berkeley Center for Law and Technology and the Samuelson Law, Technology and Public Policy Clinic received $500,000 and $200,000 respectively from Google as part of the controversial Google cy pres awards recently called into question at the U.S. Supreme Court in the Frank v. Goes case.[33]  Of course, Google is a major benefactor of the Berkeley law school.  Professor Samuelson is a prime mover[34] in the American Law Institute’s controversial end run around the Congress with its nascent “Restatement of Copyright” as the Subcommittee well knows.[35]

Cy Pres

Recent Google and Facebook Cy Pres Awards

And if Ms. Reda’s past devotion to piracy were not evidence enough, she is now associated with the Berkman Center, which itself has received sustained corporate funding from Google including $500,000 and $750,000 in two separate cy pres awards from Google in controversial class action settlements.

As the sole connection to a foreign government whose practices are evidently intended to inform the Subcommittee, Ms. Reda seems an odd choice, certainly when there is no countervailing representative of which there were many (such as MEPs Helga Truepel or Axel Voss or Commander Karen Baxter of the City of London Police).

I hope that some of this information may prove useful to you in questioning the witnesses on behalf of creators and in achieving the goals of the hearing.

 

[1] Rick Falkvinge, Google TechTalks available at https://www.youtube.com/watch?v=08gfh_6sbQI
[2] Tackling Music Piracy available at https://ifpi.org/music-piracy.php
[3] Criminal Finance from Third Party Advertising on the Internet, [UK] Serious Organized Crime Agency Alert A2A725N (Nov. 2012).
[4] U.S. Remains the Top Traffic Source for Pirate Sites, Torrentfreak (Mar. 1, 2020) available at https://torrentfreak.com/the-u-s-remains-top-traffic-source-for-pirate-sites-200229/
[5] Note that Google’s Chrome browser promotes a browser extension that blocks ads and banners on thepiratebay.org https://chrome.google.com/webstore/detail/remove-ads-from-pirate-ba/imkpamgpfalmdaikobnkefcmmkpgljjd
[6] Starting in 2019, the City of London Police Intellectual Property Crime Unit coordinates with the Trustworthy Accountability Group in “Project Brand Integrity” that alerts advertisers when their ads are published on pirate sites by ad network sellers and resellers.  TAG and Creative Future has operated a similar program in the U.S. since 2016.  Press Release: Trustworthy Accountability Group Launches New Anti-Piracy Initiative to Protect European Brands, City of London Police (Feb. 12, 2019) available at http://news.cityoflondon.police.uk/r/1194/trustworthy_accountability_group_launches_new_ant
[7] European Union Intellectual Property Office, Money Laundering and Copyright Policy (Sept. 4, 2019) available at https://euipo.europa.eu/knowledge/enrol/index.php?id=3550 (“[A] significant stream of new case law in Europe developed in Europe, dealing with interesting elements of the online infringing models as well as with the relationship between online piracy and other associated crimes, as money laundering.”).
[8] Top 10 Most Popular Torrent Sites of 2020, Torrentfreak, available at https://torrentfreak.com/top-10-most-popular-torrent-sites-of-2020-200105/
[9] The Pirate Bay, Wikipedia, available at https://en.wikipedia.org/wiki/The_Pirate_Bay
[10] Joint Supplemental Comments Of The American Association Of Independent Music And Future Of Music Coalition In Response To Request For Empirical Research, Copyright Office, In the Matter of Section 512 Study, Docket 2015-7 (2015)(Study shows that over 70% of respondents fail to enforce their rights due to lack of resources).
[11] The Temporary Autonomous Zone, Wikipedia available at https://en.wikipedia.org/wiki/Temporary_Autonomous_Zone
[12] Wikileaks Release 1.0, YouTube available at https://www.youtube.com/watch?v=VWNfIvG4z-g&feature=emb_logo
[13] Birgitta Jónsdóttir, Wikipedia available at https://en.wikipedia.org/wiki/Birgitta_Jónsdóttir
[14] Icelandic Modern Media Initiative, Wikipedia available at https://en.wikipedia.org/wiki/Icelandic_Modern_Media_Initiative
[15] Jonathan Bailey, Megaupload’s DMCA Shell Games, Plagiarism Today (January 23, 2012) available at https://www.plagiarismtoday.com/2012/01/23/megauploads-dmca-shell-games/
[16] Indictment and Summary of Evidence, United States v. Kim Dotcom and Megaupload Limited et al, at 34 (Crim. Case No. 1:12CR3, E.D. Va. 2012).
[17] Hotfile, Wikipedia available at https://en.wikipedia.org/wiki/Hotfile
[18] Ms. Reda promotes herself as “My name is Julia, I’m the Pirate in the European Parliament” and does to this day on her website juliareda.eu
[19] Pirate Party founder and Bitcoin promoter Dick Greger Augustsson also known under the alias Rick Falkvinge says “The events unfolding now will not just crumble today’s power structures, but put them in the kitchen blender and set it to ‘Disintegrate,’ happily leaning against the kitchen counter with one hand on the blender lid while leisurely whistling folk songs.”  Access to Knowledge in the Age of Intellectual Property(Information Program of the Open Society Institute, available at http://www.soros.org/initiatives/information/focus/access/articles_publications/publications/age-of-intellectual-property-20101110/age-of-intellectual-property-20101110.pdf); see also “Bitcoin will Hit $5 million—Rick Falkvinge” available at https://www.youtube.com/watch?v=vdPWnYnpEOw and “Right on the Money: Bitcoin hits $3,000  or 1000x my entry point six years ago” Falkvinge on Liberty (June 11, 2017) available at https://falkvinge.net/2017/06/11/right-money-bitcoin-hits-3000-1000x-entry-point-six-years-ago/
[20] A recent large study of 1,564 independent musicians based in Austin sponsored by the City of Austin documented that 44% of respondents stated digital music sales “Contributes None” to their income.  Titan Music Group LLC, The Austin Music Census 27 (Fig. 5) (June 1, 2015) available at https://www.austintexas.gov/sites/default/files/files/Austin_Music_Census_Interactive_PDF_53115.pdf.
[21] Julia Reda, Solidarity with Peter Sunde, Julia Reda Blog (May 2014) available at https://juliareda.eu/2014/05/solidarity-with-peter-sunde/
[22] Duncan Geere, Pirate Party to Run Pirate Bay from Swedish Parliament, Wired (July 5, 2010) available at https://web.archive.org/web/20100708152621/https://www.wired.co.uk/news/archive/2010-07/5/pirate-bay-swedish-parliament
[23] Special Report: The Pirate Kings of Sweden, Wired (Aug. 17, 2006) available at https://www.wired.com/2006/08/a-nation-divided-over-piracy/?tw=wn_index_13
[24] Young Pirates (Germany) Wikipedia https://en.wikipedia.org/wiki/Young_Pirates_(Germany)
[25] Le Tatou, Ce Qu’on Ne Vous Dit Pas Sur l’Article 13  (What No One Tells You About Article 13) YouTube (Dec. 12, 2018) available at https://www.youtube.com/watch?v=fAdhXb1NR_o
[26] Matthew Moore, Google Funds Website the Spams for its Causes, The Times of London (August 6, 2018).
[27] Available at https://mds.heinz.cmu.edu/bio-vita/
[28] See, e.g., Roger Parloff, Google and Facebook’s New Tactic in the Tech Wars, Fortune (July 30, 2012) available athttps://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/ (“If the Electronic Frontier Foundation, the nation’s preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million [cy pres] gift from Google — about 17% of its total revenue — some eyebrows might have been raised.”).
[29] Google Trade Associations and Membership Organizations available at https://services.google.com/fh/files/misc/trade_association_and_third_party_groups.pdf
[30] Available at https://pacscenter.stanford.edu/person/daphne-keller/
[31] Available at available at https://news.stanford.edu/news/2006/december6/google-120606.html
[32] Google Transparency Report available at https://transparencyreport.google.com/copyright/overview
[33] The Google Street View class action settlement is also being opposed by nine state attorneys general as well as a class objector.  Objection of David Lowery, In Re Google LLC Street View Electronic Communications Litigation (Civ. Case No. 3:10-md-02184 N.D. Calif. S.F. Div. Jan. 20, 2020).
[34] Letter from Pamela Samuelson to Director of American Law Institute (Sept. 12, 2013) available at https://musictechpolicy.files.wordpress.com/2018/02/letter-re-ali-council-010918.pdf
[35] Letter from Chairman Thom Tillis, Sen. Ben Cline, Reps. Deutch, Roby and Rouda to Director  of American Law Institute (Dec. 13, 2019) available at https://musictechpolicy.files.wordpress.com/2019/12/tillis-et-al-letter-to-ali-re-restatement-of-copyrights.pdf

@SoundExchange and @TXMusicOffice Host SoundExchange Session in Houston — Artist Rights Watch

[Editor Charlie sez: Great to see Texas Music Office and SoundExchange partnering to give Texas artists and producers a chance to sit down directly with SX to get their questions answered on digital royalties and payments.  And it’s not even SXSW!  More of this please!]

via @SoundExchange and @TXMusicOffice Host SoundExchange Session in Houston — Artist Rights Watch–News for the Artist Rights Advocacy Community

Mass Infringer TikTok Should Not Be Eligible For Compulsory Mechanical License


The Financial Times reports that the parent of mass copyright infringer* TikTok plans to launch a streaming service:

The Chinese company behind the popular video app TikTok is set to go head-to-head with the likes of Spotify and Apple in the music streaming market with the launch of its own rival service.

ByteDance is in talks with the world’s largest record companies — Universal Music, Sony Music and Warner Music — for global licensing deals to include their songs on its new music subscription service, according to people familiar with the matter.

Oh really.  So let me get this straight.  Executives at the major music conglomerates have largely sat on their hands while TikTok/Bytedance has engaged in a pattern of willful mass copyright infringement  against songwriters, and now are gonna help TikTok/Bytedance launch a streaming service? Not if I can help it.

Starting in 2021 all streaming services will get a streaming mechanical license through the Copyright Office/MLC.  Regulations that govern the federal compulsory mechanical license already forbid mechanical licenses on unlicensed recordings. This was originally designed to keep old school bootleggers from taking advantage of the federal license. In my opinion, regulations should be updated to prevent mass digital infringers like TikTok from using the compulsory license.  Obviously, the copyright office would have to distinguish between a company that might “incidentally” infringe on a limited number of songs and a company like TikTok that apparently has no licenses at all for compositions, knows this, and refuses to license. But it’s not impossible.

The Copyright Office should be required to conduct a review or at least hold a public hearing before they allow a  company to take advantage of the federal compulsory license. Why? If the federal government is going to take away songwriters individual right to license their work, the feds should make sure they aren’t, in turn, licensing to scofflaws, scammers, and criminals. Seems sensible right? Further, I caution against farming out this process to the MLC as they have already demonstrated they are not keen on transparency or oversight. The revolving door between big publishers that dominate the MLC and digital services invites corruption and cronyism. The Copyright Office should make sure that independent writers are not forced to license to a company ripped them off in the past.

Failing to vet licensees will create an extreme moral hazard for the copyright office.  Licensing willful mass infringers would effectively make the copyright office complicit in money laundering, as a company like TikTok could take dirty money from infringing activities and effectively wash it by creating a licensed service. My hope is the Copyright Office address this matter in the next few weeks.

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*There is a false narrative going around the music business that TikTok only infringes because they host User Generated Content. Thus it is protected from claims of infringement by the DMCA safe harbor.  This is absolutely not true.  Spend some time with the app and verify this, but in short, it clearly offers “sounds” to users to use in their videos. These sounds do not come from the users’ devices. They come over the network connection via the TikTok app. (Distribution! exclusive right 3)  Next It makes copies of those sounds on the users’ devices. (Copies! exclusive right 1). Users are not copying and distributing.  TikTok is. Thus like Grooveshark, it does not get the benefit of the DMCA safe harbor. It has now hired some of the smartest music licensing lawyers in the world. Yet  TikTok knowingly and wilfully continues to commit mass copyright infringement. WTF? If I was a lawyer working at TikTok? I would make sure I can pay my mortgage without a law license!

Bad Look for @TikTok_us and Labels as Key Label Licensing Executives Switch Sides

Paper Shredder

We are definitely not implying that anyone has done anything wrong.  We just really like this picture of a document shredder. 

TikTok is a Chinese state-controlled company and one of the largest music platforms in the world. Yet according to multiple sources in the music industry, most of the songs they offer to their users are not licensed. I can personally confirm that TikTok distributes at least 2 dozen of my copyrights for which they have no license.

TikTok has also found itself in a lot of hot water over accusations it illegally harvesting data from its users and is effectively a spying operation for the Chinese government.  The US Army was so concerned about this possibility it recently ordered personnel to delete the app from their smartphones. The secretive Committee For Foreign Investment in the United States (CFIUS) has launched an investigation into the purchase of musical.ly by TikTok’s parent Bytedance and security researchers have exhaustively documented the TikTok app’s intrusive and bizarre behavior.

This is why it’s especially troubling that a number of major label licensing executives are now working for TikTok after negotiating very limited licenses for their old labels. This is not a great look. Artists and songwriters can honestly wonder if their works were sold on the cheap by executives looking for a better paying tech job. To be clear I’m not saying there was commercial bribery, but I wouldn’t be surprised if potential investors, bankers (WMG and UMG are promising IPOs), or even CFIUS ask for communications between former licensing executives and TikTok just to make sure there was no hanky panky.  Remember we are talking about a Chinese state-directed firm engaged in ongoing theft of US intellectual property. Remember anyone can ask for an investigation. I have a feeling this will eventually get someone’s attention…

Sadly for the major labels, this comes after they fought to overcome artist suspicions that labels (and managers) traded lower royalties for Spotify equity.  To counteract these suspicions labels went out of their way to distribute profits from the Spotify IPO to artists on a pro-rata per-stream basis. (Curiously managers did not-Editor.) Will these high profile executive defections to the music industry’s biggest licensing scofflaw undo the goodwill (dearly) purchased with that Spotify IPO distribution? We shall see.